The Hamburg Rules clearly defined the actual carrier system in the international scope for the first time. China's Maritime Code drew lessons from the Hamburg Rules and formulated the actual carrier system in the carriage of goods by sea. This paper attempts to explain this system from the aspects of the establishment of the legal system of the actual carrier, the concept of the actual carrier system, the nature and scope of the liability, and puts forward some suggestions on the imperfections.

Keywords: identification of the actual carrier, scope of liability, nature of liability and limitation of liability

First, the establishment of the actual carrier system in the carriage of goods by sea

(1) Based on the following background, 1978 "United Nations Convention on the Carriage of Goods by Sea" (Hamburg Rules) follows the example of "International Convention on Air Transport" and provides for the actual carrier system in the carriage of goods by sea for the first time in order to balance the interests of both parties.

1, in shipping practice, it often happens that the carrier who signed the transportation contract with the shipper is not the same person as the person who actually carried some or all of the goods under the contract. For example, in time charter transportation, the charterer and the shipper signed a contract for the carriage of goods by sea, but it was the shipowner or the bareboat charterer who actually completed the transportation.

2. Because the carrier and the person actually engaged in transportation are not the same person, it leads to a series of legal problems and the rights of the holder of the bill of lading cannot be effectively protected. The holder of the bill of lading often can't find the real object of claim. When the holder of the bill of lading finds the correct object of claim under a certain legal system, it often exceeds the limitation of action. Most countries believe that in time charter transportation, if the bill of lading is made payable to the charterer and signed by the charterer or his agent, it is considered that the bill of lading is issued by the charterer, and the charterer is the carrier of goods by sea. However, a few countries believe that under the time charter transportation, the bill of lading is only a contract between the owner of the ship or the person actually engaged in the transportation of goods and the holder of the bill of lading, and the owner of the ship or the person actually engaged in the transportation of goods, as the carrier, should directly bear the liability for compensation for the loss of goods to the holder of the bill of lading. The company issuing the bill of lading is only the agent of the carrier. The above differences have caused confusion in the identification of the carrier subject.

(2) In order to solve the above problems, the Hamburg Rules stipulates the concept and responsibility of the actual carrier:

1, which is used to distinguish the carrier from the actual carrier. If the bill of lading is issued by the master of the carrying ship, it is deemed to be issued on behalf of the carrier. In time charter transportation, if the shipowner is actually engaged in the carriage of goods by sea, but the agent at the loading and unloading port is entrusted by the charterer, and the agent has issued the bill of lading payable to the charterer's company, the carrier under the bill of lading is the charterer, and the shipowner is only the actual carrier.

2. The carrier shall be responsible for all the transportation, and part of the carrier's responsibilities also apply to the actual carrier. It should be emphasized that the actual carrier's liability for compensation is limited to part of the carrier's liability. In some cases, the carrier and the actual carrier shall be directly responsible for the loss, damage or delay in delivery of the goods, and the holder of the bill of lading may directly lodge a claim against one or both of them. However, the loss, damage or delay in delivery of the goods occurred at the transportation stage actually controlled by the actual carrier and was caused by the fault of the actual carrier, so the actual carrier only needs to bear direct responsibility to the holder of the bill of lading.

(3) The above system of Hamburg Rules is directly quoted by China Maritime Law.

China maritime law absorbed the actual carrier system of Hamburg Rules. Paragraph 2 of Article 42 of Maritime Law stipulates: "Actual carrier" refers to the person entrusted by the carrier to engage in the transportation of goods or part of goods, including other persons entrusted to engage in this transportation. Articles 6 1 to 64 of the Maritime Code further define the legal liability of the actual carrier.

1. The actual carrier shall bear the same responsibilities as the carrier for the part of transportation actually performed by it, but the special agreement that the carrier bears responsibilities other than those stipulated by law or reduces the rights conferred by law shall not be effective for the actual carrier without the written consent of the actual carrier;

2. Even if the whole or part of the transportation task is entrusted to the actual carrier, the carrier must still be responsible to the holder of the bill of lading for all the transportation, unless the specific actual carrier has been clearly agreed in the transportation contract, the carrier may not be responsible;

3. If both the carrier and the actual carrier are liable, they shall be jointly and severally liable within this scope, and the holder of the bill of lading may require any one of them to bear full liability.

Second, the identification of the actual carrier.

(1) Understanding of the connotation of the entrustment relationship between the carrier and the actual carrier.

Generally speaking, the entrustment here is not limited to the principal-agent contract, but generally refers to the situation of entrusting others to do some behavior. With the actual carrier system in China's Maritime Code being transplanted to Hamburg Rules, understanding the connotation of the concept of actual carrier in this rule will clarify our doubts. According to the legislative data of Hamburg Rules, the so-called actual carrier is based on the existence of the first transport contract, and its concept is the sub-carrier entrusted by the carrier, especially all sub-carriers below the first sub-contract, and the word entrusted refers to the case that the first shipping company entrusts the transshipment goods (whether according to the freedom of transshipment clause stipulated in the contract or not) to the second shipping company, that is to say, it not only includes the case of continuous transportation. But it also includes the following situations, that is, under the time charter party, the lessee, as the carrier, enters into a contract with the shipper to accept the transportation, while the actual transportation is the charter party, that is, the owner of the charter party. In this case, the shipowner is the actual carrier. Therefore, the entrustment in maritime law cannot be equated with the entrustment contract, and the entrustment relationship between the carrier and the actual carrier reflects the transportation contract or chartering relationship determined in Hamburg Rules.

(2) Whether the actual carrier must be the party actually carrying out transportation activities.

The carrier entrusts the transportation to another party, but this party entrusts it to a third party instead of personally performing the transportation, and the third party actually performs the transportation. In this case, is the intermediate trustee the actual carrier? The definition of the actual carrier in Hamburg Rules does not emphasize that the actual carrier must carry out the transportation in person. In this way, the intermediate trustee should also belong to the actual carrier. However, the second paragraph of article 10 stipulates that "the provisions of this convention on the carrier's liability are also applicable to the actual carrier's liability for transportation." It can be inferred from this provision that only the party actually carrying out the transportation is the actual carrier, so the intermediate trustee is not the actual carrier.

The actual carrier bears the transportation responsibility, and the basic basis for establishing the actual carrier system according to law is that the goods are actually transported by it. However, the entrusting party in the sub-entrustment is not actually in charge of the goods, so it is obviously unreasonable in law to ask him to take responsibility for the loss, damage or delay in delivery of the goods. From the point of view of rationality, it is best to interpret the actual carrier as only the person who actually carries out transportation activities.

(3) Whether the actual carrier only refers to the parties who perform maritime transport or includes the parties who perform any transport obligations in the carrier's contract of carriage. Neither the Hamburg Rules nor the Maritime Code of China stipulates it. The author thinks that it is reasonable and feasible to locate the actual carrier in the maritime section.

1, the purpose of bringing the actual carrier into the legal relationship of carriage of goods by sea is to safeguard the mandatory law of the contract of carriage of goods by sea and ensure the interests of the shipper. Due to the special risks of the carriage of goods by sea, if the main body engaged in land transportation is also included in the scope of the actual carrier, the compulsory system will extend to land, which is of little significance to the establishment of the actual carrier system;

2, this will conflict with the provisions of the carrier's liability period. The mandatory liability of the carrier is limited to the carrier's liability period, while independent contractors often undertake transportation auxiliary tasks (especially the transportation of non-container goods) outside the liability period. Even if the Maritime Law stipulates that "the provisions of this chapter on the carrier" are applicable to such people, it will lose its practical significance because there is no provision on the carrier's liability in this chapter at all;

Third, the understanding and application of the actual carrier liability system.

(1) The nature of the actual carrier's liability

1, the legislator of Hamburg rules thinks that the actual carrier is directly responsible for the part of transportation performed by the shipper and others. Since the actual carrier is not the person who enters into a contract with the shipper, his liability is not based on the contract of carriage, but on the liability of this Convention (written law). That is, the actual carrier's liability to the holder of the bill of lading is legal, which is a special type of liability different from infringement and breach of contract.

(1), the actual carrier's liability for damages to the lender is not the liability for breach of contract. The legal relationship between the carrier and the lender or the bill of lading and the contract of carriage or charter party between the carrier and the actual carrier are two independent legal relationships. Although the actual carrier is entrusted by the carrier, which is equivalent to performing its contractual obligations with the lender on behalf of the carrier, there is no contractual relationship between the actual carrier and the lender, so the liability for damages borne by the actual carrier to the lender does not belong to the liability for breach of contract.

(2) The actual carrier's liability for damages to the lender is not tort liability. Judging from the contents of the obligations that the actual carrier should perform in China's Maritime Code, in terms of seaworthiness, cargo management and non-deviation, if the actual carrier violates these obligations and causes loss or damage to the goods, the actual carrier's behavior constitutes infringement. As far as the actual carrier's delay in delivery is concerned, although it has not caused physical damage to the goods, it has caused damage to the economic value of the goods, which is also an act of infringing the lender's property rights. However, the tort compensation follows the principle of total compensation, and the compensation of the infringer is limited to the actual damage caused by the infringed, and the loss is compensated as much as possible. On the other hand, the actual carrier enjoys the same rights of limitation of liability and exemption from certain liabilities as the carrier. Therefore, the actual carrier's liability for damages to the lender does not belong to tort liability.

(2) The carrier and the actual carrier shall be jointly and severally liable for the delivery of goods without bill of lading.

The actual carrier's responsibility for delivery is a weak link in the study of maritime law. The actual carrier's liability to the holder of the bill of lading should be limited to the carrier's liability stipulated in the second section of Chapter IV of Maritime Law, including the legal liability for the loss, damage or delayed delivery of the goods, careful management of the goods before and during sailing, and prohibition of unreasonable deviation, but excluding the issuance of transport documents, correct delivery of goods and other contents related to the commercial operation of the ship that are not directly related to the transportation itself. We can't misunderstand that all the responsibilities under the carrier's contract of carriage of goods stipulated in Chapter IV of Maritime Law are applicable to the actual carrier. If understood in this way, there will be no difference between the carrier and the actual carrier, and the freedom of contract of the actual carrier will be greatly restricted, which is not the original intention of legislation.

(1), in terms of legal responsibility, the correct delivery of goods belongs to the carrier's legal responsibility in Chapter IV of Maritime Law, which conforms to the provisions of Article 61 of Maritime Law, and both the carrier and the actual carrier have the obligation to deliver the goods correctly to the holder of the bill of lading issued to them;

(2) In terms of contract relativity, the right subjects corresponding to the delivery obligation of the carrier and the actual carrier may be different, and each has the delivery obligation to the bill of lading holder, while the actual carrier's bill of lading holder is often the carrier. Therefore, it is not that the carrier's responsibility to deliver the goods correctly does not apply to the actual carrier, but that the delivery obligations of both parties may be different. The actual carrier can be exempted from this responsibility as long as it has completed the correct delivery of its original bill of lading holder (including the carrier or its agent, etc.). In one case, the actual carrier has completed the transportation task after handing over the goods to the carrier for control. As for who the carrier delivers the goods, it has nothing to do with him, and the legal consequences of the carrier's delivery have nothing to do with him. On the other hand, the carrier instructs the actual carrier to deliver the goods to the holder of the bill of lading of the consignee, and the actual carrier has fulfilled the obligation to deliver the documents, so the actual carrier's liability for delivery without bill of lading will not arise in the delivery process.

2. However, if the actual carrier delivers the goods according to the carrier's wrong instructions, or fails to deliver the goods according to the carrier's instructions, or makes an error or refuses to deliver the goods, the rights and obligations between the actual carrier and the consignee or the holder of the bill of lading will arise under these circumstances.

(1), the actual carrier fails to deliver the goods at the destination port with the original bill of lading, regardless of whether it is at fault or at the request of the carrier, the carrier shall be liable for breach of contract to the other party according to the freight contract between it and the shipper or the holder of the bill of lading. The fault of the actual carrier actually caused the loss of the holder of the carrier's bill of lading, and it should also be liable for compensation and be jointly and severally liable with the carrier. Of course, if the actual carrier and the carrier deliver the goods without the bill of lading, they will obviously bear joint and several liability.

(2) When the actual carrier delivers the goods at the port of destination without taking back the original bill of lading issued to the carrier ("ocean bill of lading"), it shall be liable to the carrier for breach of contract. If the actual carrier releases the goods without bill of lading at the carrier's request or with the carrier's consent, it should be considered as "illegal refusal", that is, the actual carrier no longer violates the law and should not be liable to the carrier or shipper.

Third, the legal elements of the carrier's claim against the actual carrier.

This problem involves the division of internal responsibilities between the carrier and the actual carrier. Although the rights and obligations determined by this relationship are not directly resolved in the lawsuit brought by the holder of the bill of lading against the carrier or the actual carrier, they are closely related to this. If the act is committed by the actual carrier, the carrier may recover from the actual carrier at fault after compensating the holder of the bill of lading. However, in practice, there are also cases where the carrier directly claims from the actual carrier first. At this time, the relationship between the carrier and the actual carrier and the fact that the actual carrier breached the contract are relatively easy to prove. The question is: Does this claim have to be based on the fact that the carrier has paid the consignee?

Although according to the provisions of China's current maritime law and the principle of contract relativity determined by the contract law, the contractual relationship of carriage of goods by sea as evidenced by the bill of lading issued by the carrier and its entrusted transportation relationship with the actual carrier (ocean bill of lading) are two relatively independent contractual relationships. On this basis, the carrier can directly ask the actual carrier to bear the liability for breach of contract, but it must prove one of the elements of the liability for breach of contract-"the loss caused by breach of contract". The carrier must prove that its loss actually occurred, that is, it has been paid to the holder of the bill of lading (consignee) (or offset, etc.). ).

1, the occurrence of loss and its causal relationship with breach of contract are the necessary conditions for the establishment of liability for breach of contract, and the ultimate compensation object of the carrier's compensation should be the owner of the goods (the consignee of the carrier's bill of lading). There is a real causal relationship between the loss caused by the carrier and the delivery behavior of the actual carrier. Before the foreign payment, the carrier only enjoys an "intermediate" right to pick up the goods according to the ocean bill of lading, and is not the right holder of the goods. The liability it may bear for compensation to the consignee does not constitute "actual loss" and does not conform to the characteristics of "expected interest" stipulated in the contract law.

2. The contractual relationship between the carrier and the actual carrier is only relatively independent, and the joint liability system of the two is a special provision of maritime law. The carrier and the carrier shall be jointly and severally liable for the damage caused by the actual carrier during transportation. Joint and several liability means that any debtor has the obligation to perform all the debts first to the creditor, and can claim compensation from other debtors according to law on the basis of having performed the debts. Therefore, as the carrier in the internal recovery relationship of joint and several liability, it should first perform the external joint and several debts, and then recover from the actual carrier of another debtor according to law, and the object of the carrier's external performance should be the real owner. Otherwise, even if the actual carrier pays compensation to the carrier, if the consignee does not get compensation, it still has the right to ask the carrier and the actual carrier to bear joint and several liabilities. The defense that the actual carrier pays compensation to the carrier cannot be against the consignee, which may lead to repeated compensation by the actual carrier, and then bring an unjust enrichment return lawsuit against the carrier, thus causing an unfavorable situation in the lawsuit. Therefore, the author believes that the claim for cargo damage made by the carrier against the actual carrier should be based on the fact that the carrier has paid (or offset, etc.). ) to the consignee.

Four, the actual carrier's liability composition, limitation of action

1, because China's Maritime Law and Hamburg Rules stipulate that the actual carrier shall bear the same obligations and enjoy the same rights, exemptions and immunities as the carrier, the actual carrier's liability for compensation, rules and principles and burden of proof can be compared with those of the carrier. China's Maritime Code is basically based on The Hague-Visby Rules, and incorporates some provisions of Hamburg Rules, which implements the system of incomplete negligence liability for loss and damage of goods and adopts the principle of fault for economic losses caused by delayed delivery. In terms of the burden of proof, it is also the same as the above related rules.

2. The limitation of action for claiming compensation from the actual carrier is a controversial issue. However, the Hamburg Rules are very clear on this issue. Article 10 of the Rules stipulates that all the provisions of this Convention on the carrier's liability also apply to the actual carrier's liability for the transportation it is engaged in. The limitation of action of the carrier belongs to the provisions of this convention on the carrier's liability, so the compensation lawsuit filed against the actual carrier should also apply. This paper holds that the original intention of establishing a one-year short-term limitation of action lies in the special protection of the carrier. On the other hand, this one-year limitation also belongs to the carrier's rights. The actual carrier shall bear the responsibilities that the carrier must bear according to law, and shall also enjoy the corresponding rights of the carrier. There is no reason not to give the actual carrier the right of short-term limitation of action, otherwise it will be unfair to the actual carrier.

Verb (abbreviation of verb) conclusion

In shipping practice, the person who signs the contract with the shipper is often not the person who actually transports all or part of the goods according to the contract. The person who actually participates in all or part of the transportation according to the contract has no contractual relationship with the shipper. However, when the goods are lost, damaged or delayed due to the reason of the party actually engaged in the transportation of goods, how to define the rights and obligations of both parties has great influence on both parties. The actual carrier system in the carriage of goods by sea is a very important system, which is of great significance to the rights and obligations of both parties. The establishment of the actual carrier system has changed the traditional responsibility sharing system in the carriage of goods by sea, which is conducive to enhancing the legal certainty and stability of the carriage of goods, strengthening the protection of creditors' interests and safeguarding the interests of the actual carrier.

Bibliography:

1, Reflections on the Actual Carrier Defined by Maritime Law, Contemporary Law, Ma Deyi.

2. Identification and Liability of Actual Carrier in International Carriage of Goods by Sea, China Maritime Law Annual, Han Lixin.

3. The Actual Carrier System in the Carriage of Goods by Sea, Law and Social Development, Guo Yu.